ORAL JUDGMENT The petitioner, a limited company has challenged award dated 13th November, 1998 passed by the learned Labour Court, Nadiad in Reference (LCN) No.202/1992, thereby the learned Labour Court has partly allowed the said Reference and directed the petitioner Company to reinstate the respondent workman and to pay 75% of backwages. At the outset, it deserves to be mentioned that at or around the time when present petition was filed, a company petition praying for winding up of the Company was pending in the Court and subsequently the said company petition came to be admitted. This Court is informed during the hearing of present petition that Official Liquidator attached to Gujarat High Court has been put in possession of the assets of the Company and the proceedings of the company petition and collateral company applications are pending in this Court. So far as the facts involved in present petition are concerned, it comes out from the record that the respondent herein claimed that he was in the employment of the petitioner Company since 25th August, 1984 and was working as Machine Attendant. His salary was Rs.2854.00 and that he, along with certain other workmen of the Company, decided to contest elections in 1992 and the petitioner Company, taking shelter of his action of filling up nomination form, terminated his services w.e.f. 28th April, 1992 without following any procedure prescribed by law. He, therefore, raised industrial dispute which culminated into Reference (LCN) No.202/1992. In the said proceedings he filed his statement of claim praying for reinstatement with all consequential benefits. His claim was opposed by the petitioner Company and somewhere in the year 1995 the petitioner Company filed its written statement and opposed the relief prayed for by the workman. During the proceeding before the learned Labour Court, the deposition of the respondent herein was recorded below Exh.20 and on behalf of the petitioner Company one Mr.K.V.Patel was examined as witness and his deposition was recorded below Exh.28. Subsequently, upon considering the submissions of the contesting parties, learned Labour Court passed the impugned award dated 13th November, 1988. Aggrieved by the said award, the petitioner Company is before this Court. Mr.G.M.Joshi, learned advocate has attended the hearing of the present petition. Subsequently, upon considering the submissions of the contesting parties, learned Labour Court passed the impugned award dated 13th November, 1988. Aggrieved by the said award, the petitioner Company is before this Court. Mr.G.M.Joshi, learned advocate has attended the hearing of the present petition. He submitted that although at earlier stage he was instructed and authorised to appear on behalf of the Company, as of now he is not instructed to continue his appearance on behalf of the petitioner Company, however, since the record of the Court and the cause list shows his appearance, he would make submissions on behalf of the Company. Notice to the Official Liquidator, who would represent the Company, has gone under the order of the Court (Coram: Hon'ble Mr.Justice R.S.Garg) and on behalf of the Official Liquidator, Ms.Ami Yagnik, learned advocate has appeared. She, however, claimed that for want of relevant documents she is not in any position to effectively make submissions. She could only submit that F.I.R. was filed against the respondent herein on 1st July, 1972 for ceratin serious charges. Beyond this, she could not make any other submissions as regards the merits of the matter and she desired to adopt the submissions made by Mr.Joshi and requested that his submissions may be treated as the arguments on behalf of the Official Liquidator also. Mr.Joshi, on his part, referred to the oral evidence of the respondent and of the petitioner Company's witness. He submitted that the petitioner Company had immediately requested the respondent and other persons to report for work, however, while other persons reported for work the petitioner did not resume his duties and instead approached the Court making incorrect allegations. He also referred to certain documents (produced by the petitioner Company on the record of the learned Labour Court) to demonstrate that during the pendency of the proceedings though the respondent, in his evidence, claimed that he was not gainfully employed, the evidence disclosed otherwise and the respondent was, in fact, in gainful employment in atleast two different companies. He further submitted that since last many years the operations of the Company are closed and that, therefore, there is, even otherwise, no possibility of reinstating the respondent. He further submitted that since last many years the operations of the Company are closed and that, therefore, there is, even otherwise, no possibility of reinstating the respondent. He submitted that the award impugned in the petition suffers from errors of law and jurisdiction inasmuch as the Court has exercised jurisdiction in total disregard to the evidence available on record and that would render the award unsustainable in law. Mr.Sharma, learned advocate for the respondent submitted that the learned Labour Court has rightly considered that the termination effected by the petitioner Company by order dated 28th April, 1992 was illegal and it contravened the provisions of Section 25(F) of the Industrial Disputes Act, 1947. He submitted that the learned Labour Court has rightly taken into consideration the factum regarding respondent's subsequent employment and denied 25% of backwages. He submitted that there was no justification for the petitioner Company to terminate the respondent. The directions by the learned Labour Court are just and proper. It is not in dispute that since last several years the Company is closed and company petitions/applications are pending in this Hon'ble Court and it is also not in dispute that no workmen, at present, are in employment of the petitioner Company. Mr.Sharma, during his submissions, produced on record a copy of the order dated 28th April, 1992 by which the respondent's service was terminated. Upon examination of the record of the petition as well as in light of the award it does not appear to be in dispute that the said order dated 28th April, 1992 was not preceded by any departmental inquiry and the respondent was not afforded opportunity of hearing. The petitioner Company also does not deny that at the time of termination, retrenchment compensation also was not paid to the respondent. However, Mr.Sharma has not been able to dispute the fact that atleast from September, 1993 - if not from any earlier date - the respondent was in employment with a Company named Gujarat Guardian Ltd. and then in the year 1995 he had joined company named Hofincons Industrial Service Ltd. The petitioner has placed on record a communication from the said company i.e. Hofincons Industrial Service Ltd. from which it comes out that the respondent herein had joined the said company from 21st November, 1995 and his salary, at that time, was Rs.5952.00. It emerges from the oral evidence of Company's witness that communications from the aforesaid companies, giving details of respondent's employment, were placed on record of the learned Labour Court. From the evidence of the respondent, it comes out that the respondent admitted that the Company had invited the workmen (who were terminated on ground of filling up nomination to contest election) for work and that they had resumed their work but he was not invited to resume the duty. It also comes out that the respondent did not make demand for reinstatement in writing after the said persons were re-employed by the Company. At the relevant time when all workmen who were terminated on the ground that they contested election and subsequently they were recalled for work, the respondent, for reasons best known to him, did not report for work and instead alleged that the Company did not invite him to resume duty. It is curious enough that the respondent, at that point of time, did not demand similar treatment of recalling and reinstatement. The said inaction and indifference of respondent gives birth to a justified inference that the respondent, at that time, was not keen to go back in the employment with the petitioner Company. On this count, the submissions of Mr.Joshi appears to be justified that the respondent did not resume the work and/or did not approach the company because he might have been employed elsewhere and in any case he was, undisputedly in gainful employment since September, 1993. There is no reason for not accepting the evidence of the witness of the petitioner company wherein he has referred to the communications from the company named Gujarat Guardian Ltd. and Hofincons Industrial Service Ltd., as per which the respondent was in employment atleast since September, 1993. While passing the impugned order, the learned Labour Court has not taken into consideration the conduct of the respondent, more particularly the relevant aspect that though he was in employment, the respondent gave incorrect evidence and initially denied the said aspect and it was only when he was confronted with the documents that he subsequently accepted the fact that he was gainfully employed. It transpires that it was after the petitioner Company placed on record of the learned Court the evidence of respondent's gainful employment from September 1993, that the respondent admitted the fact about his gainful employment. It transpires that it was after the petitioner Company placed on record of the learned Court the evidence of respondent's gainful employment from September 1993, that the respondent admitted the fact about his gainful employment. The direction regarding reinstatement has been granted without considering, or by discounting the aforesaid factual aspects. Further, the undisputed fact that the operations of the Company are closed since last many years also deserves due consideration. Besides these aspects, the aspect flowing from the letters of Gujarat Guardian Limited and Hofincons Industrial Service Ltd., that the respondent had secured employment through misrepresentation, also cannot be ignored. A cumulative effect of simultaneous consideration of all the aforesaid aspects gives birth to a just and reasonable conclusion that the direction requiring the petitioner to reinstate the respondent is unjustified. There is, however, no material to show that the petitioner - Company had, before passing the order dated 28th April, 1992, granted any opportunity of hearing to the respondent. The termination order recites that the respondent's service was terminated with immediate effect from 29th April, 1992 in terms of the conditions of appointment order (which is not on record). He was paid notice pay of 14 days. From the said order it does not transpire that the termination was preceded by disciplinary proceedings or payment of compensation. Hence, there is need to resolve the conflict of claims and balance the equities so far as the period between 28/4/92 (i.e. the date of termination) and August, 1993 (the date from which the respondent as the evidence shows got employed), is concerned. As the service of the petitioner was terminated without affording any opportunity of hearing, it would be, in view of this Court, just and proper if the petitioner Company is directed to pay 25% of wages for the period from 28th April, 1992 to 31st August, 1993. Since the company petitions/applications are pending and the Official Liquidator is put in possession of the assets of the Company, the workman shall have to take necessary steps with the office of the Official Liquidator. In any case merely because the respondent filled-up nomination form there was no justification to terminate the respondent before he actually contested election, unless that is prohibited under any applicable rules or standing orders. In any case merely because the respondent filled-up nomination form there was no justification to terminate the respondent before he actually contested election, unless that is prohibited under any applicable rules or standing orders. The petitioner has not brought any such provision to the notice of this Court and its defence before the trial Court also was not based on such platform. The act of terminating respondent, therefore, has to be held as illegal. However, in view of the facts and circumstances of present case, as discussed above, there is no warrant and justification for direction regarding reinstatement and/or backwages @ 75%, and the direction/relief deserves to be appropriately modified. After carefully considering the aforesaid aspects, I am not inclined to confirm the direction regarding reinstatement and/or payment of 75% backwages. Consequently, the petition is partly allowed. The impugned award directing reinstatement and payment of backwages @ 75% is set-aside and modified in aforesaid terms and to the aforesaid extent and effect. The Company shall have to pay 25% of wages for the period from 28th April, 1992 to 31st August, 1993. Petition stands disposed of with the aforesaid directions. Rule made absolute to the aforesaid extent. No order as to costs.